The Makings of History / A warning to every soldier

The Munich District Court stands between the Nymphenburg Palace, which was built in the 17th century as a summer home for the monarchs of Bavaria, and the famous Loewenbrau beer hall, which served as a meeting place for Adolf Hitler and his supporters. The beer cellar is located on the corner of Dachau Street.

Courtroom No. 101 looks like an auditorium in a college: The acoustic ceiling is made of large cubes and there is a balcony. On one wall hangs a simple wooden cross. Currently on trial there is John Demjanjuk, accused of being partner to the murder of 27,900 of the approximately 160,000 Jews slaughtered at Sobibor. As opposed to the big Treblinka trial he faced in Israel, Germany is attributing to Demjanjuk a rather marginal role. The number of acts of murder he is accused of abetting has been calculated according to the period in which he was a guard at Sobibor. The maximum punishment he can receive, if convicted, is 15 years in prison.

He is brought into the courtroom in a wheelchair. He is still a large, heavy man, but during the 17 years since I saw him last in Jerusalem, he has aged considerably; he is now 89. Today he is wearing a short khaki-colored jacket, as though he were still serving in some army, and black trousers. Two young paramedics remove his shoes and he remains in his white socks. They lift him onto a bed covered in a starched sheet. Demjanjuk remains on his back, his face partly covered by a cap; from that moment on he stays motionless, throughout the entire court session.

Next to him sits a young woman who translates into Ukrainian what is said in the courtroom, but Demjanjuk does not react. He looks like a corpse. Otherwise, no one pays attention to him, as though he were not there.

The bench consists of three judges, two men and a woman, and four jurors, two women and two men. The chairman of the court, as he is called here, is Judge Ralph Alt, who is 63, bald and has a white goatee. There is an aura of bureaucratic grayness around him. The second judge, Thomas Lenz, 37, has curls down the nape of his neck. He is more impressive. In the sessions last week he asked many focused questions. Judge Helga Pflueger and the four jurors didn't say anything, but they looked attentive.

The defense attorney, Ulrich Busch, repeatedly demanded that the judges recuse themselves on the grounds they are prejudiced against the defendant. A tall, powerfully built man of 63, he too is bearded. He often interrupts the chairman, raises his voice to him and is rude to him. "I hope you remember there is a defense here," he shouted at the judge after a Sobibor survivor testified for a very long time.

"You'll get your turn," replied the judge, to which Busch answered: "I hope that will happen this year." Judge Alt did not respond.

At the morning session on Wednesday last week, the judge asked him whether he had any further questions and Busch, red-faced with wrath, shouted: "Why do you need to ask if I have further questions? You can imagine I do have further questions and if I don't have further questions I'll tell you I have no more questions!" The next day he quoted something from the weekly Der Spiegel. The judge inquired as to the date of publication and Busch retorted: "You can find it on Google. That's the way it's done nowadays."

At the end of the day in court, I asked him why he was annoying the judge and Busch replied that the judge annoys him.

In his childhood he dreamed of being Perry Mason, he told me, but at the moment he is just imitating the defense tactics of Yoram Sheftel, Demjanuk's Israeli defense attorney, whom Busch said he admires. Among all those present in the courtroom, he claimed, there are only two people who believe in Demjanjuk's innocence: he and Demjanjuk himself. The whole proceeding is illegal, he noted, adding that the purpose of the trial is to mitigate Germany's guilt by stressing the guilt of people from other nations - among them the Ukrainians. But Germany has no moral right to deal with the guilt of other nationalities, asserted Busch.

The trial in Germany, he continued, was born of pressure from the Office of Special Investigations of the U.S. Department of Justice (OSI), which was severely hurt by Demjanjuk's acquittal in Jerusalem and tried unceasingly to bring about his conviction in another country. This unit is headed by a man called Eli M. Rosenbaum, said Busch emphatically, then pausing for a moment: Yes, Rosenbaum. Rosenbaum once served as the legal advisor to the World Jewish Congress.

One of the attorneys representing the Sobibor survivors is Martin Mendelsohn, who headed OSI in the past. Jewish organizations in the United States are participating in paying the attorneys' expenses.

This sounds like a Jewish conspiracy, but Busch also hastened to tell me about a close friend of his, a Swiss rabbi named Michael Goldberger. The two became acquainted when Busch was defending a number of Israelis who were accused of dealing drugs in Germany. Goldberger even took Busch and his wife on a tour of Israel; they even visited the Western Wall.

Rabbi Goldberger, who is currently the rector of the Noam Jewish school in Zurich, was quite alarmed when he heard that Busch is defending Demjanjuk. He did not say that Busch is necessarily one of his friends, but, he told me cautiously, he does appreciate the positive role Busch played in the trial of the three Israelis. The German judge evinced hostility toward them and Busch defended their honor as Jews and also Israel's good name, said the rabbi.

Busch said he knows the meaning of the Holocaust: His parents lived in constant fear that the Nazis would take his mentally ill sister away to be killed. His wife Vera is the daughter of parents from Ukraine, who were brought to Germany for forced labor and immigrated afterward to the United States, where they mingled with other immigrants from Ukraine. Busch and his wife knew friends of Demjanjuk in America, which is how he got this case. Thus far he has handled more routine criminal cases. He is paid by the German government. Another appointed attorney sits beside him.

Demjanjuk is not playacting, asserted Busch: He feels bad and finds it hard to concentrate. His legs hurt and his back bothers him. Sometimes he reminisces about his time in the Israeli jail: The conditions were far better than in Germany, he related. The Israeli jailers treated him in a friendly way and there were a lot of laughs. He received postcards from wellwishers from all over the world and hung them on the walls of his cell. He was also sent money for the canteen and he had a radio.

Busch expects Demjanjuk will die before the trial is over.

Demjanjuk claims he was never at Sobibor at all and that the German service certificate placing him there was forged by the KGB. That was the main defense claim in Israel, and it was rejected. According to Busch, the verdicts in Jerusalem apply both to crimes at Treblinka and at Sobibor, and therefore do not allow for a retrial in Munich. This is a legal problem whose answer is not entirely clear.

Alternatively, the defense attorney has argued that Demjanjuk was sent to Sobibor under duress. He too was a victim, just like the Jews, said Busch at the start of the trial. One of the Sobibor survivors said only an idiot could make such a claim. In response Busch read into the record a long declaration, the gist of which was - I am not an idiot.

German law permits Sobibor survivors to appear at the trial as "secondary prosecutors," alongside the general prosecution. Many of them have come from the United States and The Netherlands. They tell bone-chilling horror stories.

Last week Thomas (Toivi) Blatt of Santa Barbara, California, completed his testimony. A silver-haired man of 83, Blatt tried to maintain his dignity but he spoke in a shaky mixture of English, German and Yiddish, so it was difficult to understand him. His hearing aid was on the blink and therefore he too had a hard time understanding what was said in the courtroom. It was sad.

It was important to Blatt to tell the story: It is his life's aim as a survivor. Busch lashed into him cynically and at moments it seemed the victim was the defendant. Among other things, the lawyer demanded details that Blatt as a prisoner could not have known, such as the number of Ukrainian guards posted to the camp. Busch persisted. "But in 1960 you said in other testimony there were 200," he said, raising his voice and citing a previous verdict casting doubt on Blatt's reliability as a witness. A victorious grin spread across the lawyer's face, as though he had just proved that the Sobibor camp never existed at all.

The judges did not react. These are the rules of the game of the liberal trial; crimes against humanity apparently need different rules.

Last Thursday, secondary-school students from the Leon Feuchtwanger Gymnasium came to the courtroom in the context of Catholic religious instruction lessons. Previously, they had read material and seen a film about Demjanjuk. Their teacher, Charis Multen, asked them to ponder the ethical dilemma raised by the trial: What should Demjanjuk have done when he found himself at Sobibor?

It is unlikely the 17-year-old students were aware of this, but this trial is being held to a large extent for them and their peers, everywhere. This is because in the years since the end of World War II more genocides have raged, as in Cambodia, Rwanda and the Balkans, and more war crimes have been committed in many places, from Vietnam to the Gaza Strip. The Demjanjuk trial is justified, therefore, as a warning to every soldier: If he commits war crimes, he is liable to find himself on the defendant's bench, even if he is 89 years old.